Citation Nr: 0713884
Decision Date: 05/11/07 Archive Date: 05/25/07
DOCKET NO. 03-26 825 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an initial compensable disability rating
for pseudofolliculitis barbae (PFB).
2. Entitlement to a disability rating greater than 20
percent for a low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Paul S. Rubin, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1964 to
March 1971.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from September 2002 and February 2005
rating decisions of the Department of Veterans Affairs (VA)
Regional Offices (RO) in Cleveland, Ohio, and Montgomery,
Alabama. After the September 2002 rating decision, the
veteran moved, and jurisdiction of his claim was transferred
to the RO in Montgomery, Alabama.
The veteran testified at a Board videoconference hearing
before the undersigned in January 2007. A transcript of that
hearing has been associated with the claims folders.
The issue of a higher rating for a low back disability is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDING OF FACT
The veteran's service-connected PFB exhibits occasional
itching and irritation with less than 10 percent of the
exposed area of the face and neck affected, indicative of a
higher 10 percent rating under either the previous or amended
regulations. However, the evidence of record does
demonstrate extensive lesions, marked disfigurement, or
systemic therapy due to PFB, or 20 to 40 percent of exposed
areas affected by PFB, under either the previous or amended
regulations.
CONCLUSION OF LAW
The criteria for an initial disability rating of 10 percent,
but no greater, for PFB have been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.27,
4.118, Diagnostic Codes 7806, 7813 (2006); 4.118, Diagnostic
Codes 7806, 7813 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1
(2006). If a veteran has an unlisted disability, it will be
rated under a disease or injury closely related by functions
affected, symptomatology, and anatomical location. 38 C.F.R.
§ 4.20; see 38 C.F.R. § 4.27 (providing specific means of
listing diagnostic code for unlisted disease or injury).
If there is a question as to which evaluation to apply to the
veteran's disability, the higher evaluation will be assigned
if the disability picture more nearly approximates the
criteria for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the
degree of disability will be resolved in the veteran's favor.
38 C.F.R. § 4.3.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the veteran, as well as the entire history of the
veteran's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991).
The veteran's PFB disability is currently evaluated as
noncompensable (0 percent disabling) under Diagnostic Code
7813, dermatophytosis. 38 C.F.R. § 4.118 (2006). Neither
the original nor the revised versions of the rating criteria
have a specific diagnostic code for PFB. The disorder is,
therefore, rated as analogous to dermatophytosis and eczema
because the functions affected, the anatomical localization,
and the symptomatology are most closely analogous to these
disorders. See 38 C.F.R. § 4.20.
The veteran has appealed the original September 2002 rating
decision that granted service connection for PFB at 0
percent. This could result in "staged ratings" based upon
the facts found during the period in question. Fenderson v.
West, 12 Vet. App. 119, 126 (1999).
The veteran's claim for service connection for PFB was
received by the RO in August 2001. During the pendency of
the veteran's appeal, VA promulgated new regulations for
evaluating disability from skin disorders, including scars,
effective August 30, 2002. See 67 Fed. Reg. 49,590 (July 31,
2002). Generally, where the law or regulation changes after
a claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the veteran will apply. Karnas
v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when
amended regulations expressly state an effective date and do
not include any provision for retroactive applicability,
application of the revised regulations prior to the stated
effective date is precluded, notwithstanding Karnas. 38
U.S.C.A. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461, 467
(1997); VAOPGCPREC 3-2000.
Since there is no provision for retroactive application,
prior to August 30, 2002, the Board may apply only the
previous version of the rating criteria. As of August 30,
2002, the Board must apply whichever version of the rating
criteria is more favorable to the veteran.
The RO addressed the previous and amended criteria in the
August 2003 statement of the case (SOC). Therefore, the
Board may also consider both sets of regulations without
first determining whether doing so will be prejudicial to the
veteran. Bernard v. Brown, 4. Vet. App. 384, 392-94 (1993).
Under the previous criteria, PFB is rated, by analogy, to
eczema (Diagnostic Code 7806), depending upon the location,
extent, and repugnance or otherwise disabling character of
manifestations. See Note to 38 C.F.R. § 4.118, Diagnostic
Code 7813 (2002).
Under the previous criteria for eczema (Diagnostic Code
7806), a compensable rating of 10 percent requires evidence
of exfoliation, exudation, or itching, if involving an
exposed surface or extensive area. If the exudation or
itching is constant and there are extensive lesions or marked
disfigurement, a 30 percent disability rating is assigned.
To warrant a 50 percent rating, ulceration or extensive
exfoliation or crusting, and systemic or nervous
manifestation or exceptional repugnance must be shown. 38
C.F.R. § 4.118, Diagnostic Code 7806 (2002).
Under the amended criteria for Diagnostic Code 7813, PFB
(tinea pedis of the beard area) is rated as disfigurement of
the head, face, or neck (Diagnostic Code 7800), scars
(Diagnostic Codes 7801-7805), or eczema / dermatitis
(Diagnostic Code 7806), depending upon the predominant
disability.
Under the amended criteria for eczema (Diagnostic Code 7806),
when the disorder covers less than 5 percent of the entire
body or less than 5 percent of exposed areas are affected,
and no more than topical therapy is required during the past
12- month period, a noncompensable rating is assigned. A
higher 10 percent rating is assigned when at least 5 percent,
but less than 20 percent of the entire body is covered; or at
least 5 percent, but less than 20 percent of exposed areas
are affected; or intermittent systemic therapy, such as
corticosteroids or other immunosuppressive drugs, are
required for a total duration of less than six weeks during
the past 12-month period. A 30 percent rating is warranted
for dermatitis or eczema, affecting 20 to 40 percent of the
entire body or 20 to 40 percent of exposed areas, or for
dermatitis or eczema that requires systemic therapy, such as
corticosteroids or other immunosuppressive drugs, for a total
duration of six weeks or more, but not constantly, during the
past 12-month period. A 60 percent disability rating is
assigned for dermatitis or eczema, affecting more than 40
percent of the entire body or more than 40 percent of exposed
areas, or for dermatitis or eczema that requires constant or
near-constant systemic therapy, such as corticosteroids or
other immunosuppressive drugs, during the past 12-month
period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2006).
Initially, VA skin examinations conducted in January 2002 and
June 2004 with accompanying photographs show no evidence of
residual scarring, characteristics of disfigurement, or burns
due to his PFB. Thus, consideration of Diagnostic Codes
7800, 7801, 7802, 7803, 7804, and 7805 under either the
previous or the amended regulations is not warranted.
Consequently, the Board concludes that Diagnostic Code 7806
under both the previous and amended regulations most
appropriately reflects the veteran's service-connected PFB
disability. See Butts v. Brown, 5 Vet. App. 532 (1993)
(choice of diagnostic code should be upheld if supported by
explanation and evidence).
In this regard, under either the previous or the amended
Diagnostic Code 7806, the Board finds that the overall
disability picture more accurately reflects a higher 10
percent rating. 38 C.F.R. § 4.7. Service medical records
(SMRs) confirm that the veteran was put on profile and
instructed not to shave due to his PFB. Since discharge in
March 1971, the veteran has grown a beard and rarely shaves.
He reports that when he does shave, he experiences razor
bumps and cysts that can take several months to clear. See
December 2002 notice of disagreement; transcript of January
2007 videoconference testimony.
Most importantly, under the previous criteria, both the
January 2002 and June 2004 VA skin examiners noted occasional
itching and irritation due to PFB. Under the amended
criteria, the June 2004 VA examiner diagnosed the veteran
with PFB as less than 10 percent of the exposed area of the
face and neck was affected. Further, with regard to the
current criteria, the 2004 VA examiner noted that less than
10 percent of the exposed area was affected. Thus,
considering that the veteran's lay statements appear
credible, and resolving any doubt in the veteran's behavior,
a higher 10 percent rating under either the old or the new
criteria for Diagnostic Code 7806 is warranted.
However, the evidence of record does not warrant a disability
rating greater than 10 percent under either the previous or
amended regulations. 38 C.F.R. § 4.7. In this respect,
neither the January 2002 nor the June 2004 VA skin examiner
documented extensive lesions or marked disfigurement.
Further, neither examiner found PFB affecting 20 to 40
percent of the entire body or 20 to 40 percent of exposed
areas, or PFB that requires systemic therapy, such as
corticosteroids or other immunosuppressive drugs, for a total
duration of six weeks or more. Finally, VA treatment records
from 2004 to 2006, and earlier private and Social Security
Administration (SSA) medical records do not demonstrate
treatment indicative of a higher 30 percent rating. Overall,
the veteran's PFB condition is well controlled due to his
beard.
The Board adds that it does not find that the veteran's PFB
disability should be increased for any other separate period
based on the facts found during the appeal period.
Fenderson, 12 Vet. App at 126. His level of disability has
been consistent. Accordingly, in light of the above, the
preponderance of the evidence supports a disability rating of
10 percent, but no higher, for the veteran's service-
connected PFB disability. 38 C.F.R. § 4.3.
Further, the Board finds no evidence of frequent
hospitalization or marked interference with employment
associated with his PFB disability in order to justify a
referral of the case for extra-schedular consideration. 38
C.F.R. § 3.321(b)(1).
Duty to Notify and Duty to Assist
Review of the claims folder reveals compliance with the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §
5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). The duty to notify was accomplished by way of VCAA
letters from the RO to the veteran dated November 2001 and
May 2006. Those letters effectively satisfied the
notification requirements of the VCAA consistent with 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) Informing
the veteran about the information and evidence not of record
that was necessary to substantiate the claim; (2) informing
the veteran about the information and evidence the VA would
seek to provide; (3) informing the veteran about the
information and evidence he was expected to provide; and (4)
requesting the veteran provide any evidence in his possession
that pertains to his claim. See also Pelegrini v. Principi,
18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App.
183 (2002).
In addition, in March and May of 2006, the RO provided the
veteran with the additional notice required in the recent
case of Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The RO correctly issued the November 2001 VCAA notice letter
prior to the September 2002 adverse determination on appeal.
Pelegrini, 18 Vet. App. at 120. The Board also emphasizes
that the PFB appeal arises from an initial rating assigned
when the RO awarded service connection, such that the
original November 2001 VCAA letter refers to the requirements
for establishing only service connection for this disorder.
VA's Office of General Counsel (GC) has held that there is no
requirement for additional 38 U.S.C.A. § 5103(a) notice on a
"downstream" issue, i.e., an increased rating after an
initial award of service connection, if proper VCAA notice
for the original service connection issue was already
provided, as is the case here. VAOPGCPREC 8-2003.
Nonetheless, the RO issued an additional VCAA notice letter
in May 2006 with information specific to the claim for an
increased rating for PFB, such that there can be no prejudice
to the veteran.
Moreover, the Board emphasizes that neither the veteran nor
his representative has made any showing or allegation of any
defect in the provision of notice that resulted in some
prejudice to the veteran. The Board finds that any
deficiency in the content or timing of these notices is
harmless error. See Overton v. Nicholson, 20 Vet. App. 427,
435 (2006).
With respect to the duty to assist, the RO has secured SMRs,
relevant VA treatment records, private and SSA medical
records as identified and authorized by the veteran, and
several VA medical examinations. In addition, the veteran
has also submitted additional private medical evidence and
personal statements, as well as his hearing testimony. The
VA skin examinations of record are adequate for rating the
current severity of the veteran's PFB. 38 C.F.R. § 4.2. The
Board is satisfied that all relevant evidence identified by
the veteran has been secured, and that the duty to assist has
been met. 38 U.S.C.A. § 5103A.
ORDER
An initial compensable disability rating of 10 percent for
PFB is granted.
REMAND
The veteran's low back disability is currently evaluated as
20 percent disabling under Diagnostic Code 5237, lumbosacral
strain. 38 C.F.R. § 4.71a (2006). The 20 percent rating has
been in effect since May 22, 1991. Effective September 26,
2003, the regulations regarding diseases of and injuries to
the spine, to include intervertebral disc syndrome, were
revised by the VA. See 68 Fed. Reg. 51,454 (Aug. 27, 2003)
(codified at 38 C.F.R. pt. 4). The veteran's claim for an
increased rating was received by the RO in October 2004.
Consequently, since the veteran filed his claim for an
increased rating subsequent to the September 2003 revisions,
only the most recent regulations apply to his claim.
Where the available evidence is too old for an adequate
evaluation of the veteran's current condition, VA's duty to
assist includes providing a new examination. Weggenmann v.
Brown, 5 Vet. App. 281, 284 (1993). The last VA examination
determining the severity of his service-connected low back
disability was performed in November 2004. Although not
unduly remote, a more current examination is warranted to
adequately rate his current low back disability, especially
in light of recent VA treatment records documenting
additional low back complaints following a motor vehicle
accident in October 2005. In addition, at the January 2007
videoconference hearing, the veteran reiterated that his low
back disability has worsened since the last VA examination
was performed. As such, the Board finds that a remand is
warranted for a new VA examination to determine the current
severity of his low back disability.
Accordingly, the case is REMANDED for the following action:
1. The veteran's VA medical records,
including records of treatment from the
Montgomery VAMC dated since May 2006,
should be obtained and associated with
the claims folder.
2. Arrange for the veteran to be scheduled
for a VA examination to determine the
current nature and severity of his
service-connected lumbar spine
disability. The claims folder must be
made available to the examiner for
review and the examination report must
indicate whether such review was
accomplished. The examination should
include any test or study deemed
necessary by the examiner. The
examination should comply with AMIE
protocols for the appropriate
examination.
3. After completing any additional necessary
development, readjudicate the low back
disability on appeal, considering any new
evidence secured since the May 2006
supplemental statement of the case
(SSOC). If the disposition remains
unfavorable, the RO should furnish the
veteran and his representative with
another SSOC and afford the applicable
opportunity to respond.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The appellant has the
right to submit additional evidence and argument on the
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2006).
______________________________________________
M. C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs